How to Plead Around the Federal Gun Industry Legal Shield Law ...

How to Bring a Successful Case Against Gun Manufacturers and Sellers andAvoid Dismissal Under the Federal Gun Industry Legal Shield LawDaniel R. Vice, Senior Attorney, Brady Center to Prevent Gun ViolenceIn recent years, courts have recognized that under longstanding common lawprinciples, civil liability should be imposed on gun manufacturers and dealers whosenegligence arms criminals with firearms. Some of these cases resulted in landmarksettlements, such as a $2.5 million settlement in a lawsuit brought by Brady Centerattorneys on behalf of Washington, D.C. sniper victims. These legal victories struckfear into the firearms industryand its gun lobby allies thatthe threat of liability forreckless practices might forcethe industry – that had beenprofiting from its gun salesheaded for criminal hands – toalso take responsibility for itsdistribution systems thatfunnel a continuous stream of firearms into the criminal market.Following Republican victories in the 2004 elections, the gun lobby succeededin enacting into law sweeping legal protections that some feared (and the gunindustry hoped) would wipe out most tort liability for gun dealers and manufacturers.Yet reports of the demise of gun liability cases were premature. While this new

federal law, the Protection of Lawful Commerce in Arms Act, 1 is an ill-advised andunwarranted attempt to discriminate against the civil rights of gun violence victims,it has failed to shut the courthouse doors to all legitimate claims. Well-pleaded,carefully crafted cases can still proceed against irresponsible gun companies. Thispaper explains how to plead and litigate successful cases to hold gun dealers andmanufacturers accountable for reckless conduct that arms dangerous criminals withdeadly weapons.Overview of Liability Theories Against Gun Manufacturers and DealersLawsuits against gun manufacturers and dealers have generally focused ontwo theories of liability – irresponsible (although, due to weak gun laws, frequentlynot illegal) distribution of firearms that arms criminals, and unsafe design of firearms.This paper focuses on gun manufacturer and dealer liability relating to gundistribution. 2 Gun distribution cases are generally based on two causes of action –negligence and public nuisance. About two dozen courts in recent years haveallowed these types of cases to go forward against gun manufacturers and dealers. 3115 U.S.C. §§ 7901-03.2For information about lawsuits relating to unsafe firearms design, see, e.g., Allen Rostron, Gunningfor Justice, TRIAL (Nov. 2001); Brian J. Siebel, The Case Against the Gun Industry, PUB. HEALTH REP.(Sept./Oct. 2000); Jonathan E. Lowy, Litigating Against Gun Manufacturers, TRIAL (Nov. 2000); all ofwhich are available at http://www.gunlawsuits.org/features/articles/. The Protection of LawfulCommerce in Arms Act permits certain product liability cases under 15 U.S.C. § 7903(5)(A)(v), thescope of which is presently being considered by the Illinois Supreme Court. See Adames v. Sheahan,378 Ill.App.3d 502, 880 N.E.2d 559 (Ill. App. Ct. 2007), appeal allowed, 227 Ill.2d 577, 888 N.E.2d 1182(Ill. Mar 26, 2008).3 Appellate Victories: City of Gary v. Smith & Wesson Corp., 801 N.E.2d 1222 (Ind. 2003) (appellatereversal of lower court dismissal); Ileto v. Glock, 349 F.3d 1191 (9th Cir. 2003) (appellate reinstatementof case); James v. Arms Tech, 820 A.2d 27 (N.J. Super Ct. App. Div. 2003) (trial and appellate denials ofmotion to dismiss; case later voluntarily dismissed without prejudice to refile); Hicks v. T&M Jewelry,Inc., No. 97-Ci 2617 (Fayette County Circuit Ct., Lexington, Kentucky), dismissal reversed on appeal 2003WL 21771968 (Ky. Ct. App. 2003); City of Cincinnati v. Beretta, 768 N.E.2d 1136 (Ohio 2002) (appellatereversal of lower court dismissal; case later voluntarily dismissed without prejudice to re-file); Smith v.Bryco Arms, 33 P.3d 638 (N.M. Ct. App. 2001), cert. denied, 34 P.3d 610 (N.M. 2001); Morial v. Smith &2

In each case, Brady Center attorneys served as pro bono co-counsel with local triallawyers or assisted the plaintiffs’ attorneys in litigating their cases against gunindustry defendants. 4The Brady Center report Smoking Guns highlights some of theevidence uncovered in this litigation against the gun industry – including previouslysecret gun industry documents, statements from industry whistle-blowers, andsworn testimony from industry executives – showing how the gun industry hasknowingly funneled guns into the illegal market. 5In cases concerning irresponsible gun distribution, a dealer or manufacturercould have acted to prevent a firearm from getting into the hands of an irresponsibleperson. These cases typically involve either a direct sale to a dangerous person or anWesson, 785 So.2d 1 (La. 2001), cert. denied, 534 U.S. 951 (2001) (dismissal based on state immunitylaw); Kitchen v. K-Mart Corp., 697 So.2d 1200 (Fla. S. Ct. 1997) (appellate reinstatement of jury award).Trial Court Victories: NAACP v. AccuSport, Inc., 271 F.Supp.2d 435 (E.D.N.Y. 2003) (gun industry heldto have created public nuisance after trial; case was dismissed due to lack of organizational standing);People of the State of California v. Arcadia Machine & Tool, No. 4095, 2003 WL 21184117 (Cal.Super. Ct. Apr. 10, 2003) (denying summary judgment to gun dealers and distributors, each of whomsettled before trial) (case brought by 12 cities and counties); Lemongello v. Will Co., Inc., 2003 WL21488208 (Cir. Ct. W.Va. June 19, 2003) (denying motions to dismiss gun dealer and manufacturer;settlement for $1 million); Johnson v. Bulls Eye Shooter Supply, 2003 WL 21639244 (Wash. Super. June27, 2003), reconsideration denied, interlocutory appeal denied (commissioner ruling) (denying motionsto dismiss gun dealer and gun manufacturer; settlement for $2.5 million); White v. Smith & Wesson 97F. Supp. 2d 816 (N.D. Ohio 2000) (Cleveland, OH) (motion to dismiss denied); Maxfield v. Bryco Arms,et al, No. 841636-4 (Super. Ct. Cal., Alameda County 2003) (jury verdict - trial victory); Hernandez v.Kahr Arms, Inc., Civil No. WOCV2002-01747 (Mass. Super. Ct. Apr. 4, 2003) (denying motion to dismissgun manufacturer); Anderson v. Bryco Arms Corp., No. 00-L-007476 (Circuit Ct., Cook County, Ill., April,10, 2002) (denial of motion to dismiss); Jefferson v. Rossi, No. 02218 (Pa. Ct. Com. Pleas, Aug. 2, 2002)(denying motions to dismiss gun dealer and distributor; settlement for $850,000); Isaac v. Southern OhioGuns International, Inc., C.A. No. 98-4618 (Mass. Super. Ct.) (denial of motion for summary judgment;confidential settlement); Boston v. Smith & Wesson, 2000 WL 1473568 (Mass. Super. July 13, 2000)(motion to dismiss denied; settled in 2001); Mathieu v. Fabrica D’Armi Pietro Beretta SPA and BerettaU.S.A., No. 97-CV-12818-NG (D. Mass.) (motion to dismiss denied, case settled in 2000); McNamara v.Arms Tech. Inc., 71 F. Supp. 2d 720 (E.D. Mich. 1999) (dismissal based on state immunity law).4For descriptions of other cases brought by Brady Center attorneys see http://www.gunlawsuits.org.See also Brian J. Siebel, Gun Industry Immunity: Why the Gun Industry’s “Dirty Little Secret” Does NotDeserve Congressional Protection, 73 U.M.K.C. L. Rev. 911 (2005).5 Brady Center to Prevent Gun Violence, Smoking Guns: Exposing the Gun Industry's Complicity in theIllegal Gun Market (2003), available at http://www.bradycenter.org/reports/index.php#sg.3

irresponsible sale that allows a gun to enter the criminal market and ultimately causeharm to the plaintiff. Examples of these types of transactions are:• Sales to an irresponsible person. The sale of a firearm to a dangerousperson or irresponsible buyer can be evidence of negligent entrustmentor negligent distribution. A dealer that sells a gun to someone who ismentally unstable, underage, intoxicated, or demonstrates other signsof dangerousness may be liable for negligence. 6• Straw sales. Straw sales are sales to otherwise legal buyers who buyguns on behalf of a prohibited purchaser. Gun traffickers use strawpurchasers to obtain guns from irresponsible dealers. Properly traineddealers could identify and prevent straw purchases. Manufacturers anddistributors could require dealers who sell their guns to properly trainsalespeople to detect and prevent straw sales. 7• Multiple sales or repeat sales. Under federal law, multiple sales aresales of more than one handgun to an individual within five businessdays. 18 U.S.C. § 923(g)(3)(A). The federal Bureau of Alcohol, Tobacco,Firearms and Explosives (ATF) has characterized multiple sales as highrisksales that may indicate gun trafficking. 8 Likewise, repeat sales ofmultiple handguns to the same buyer may be a sign of gun trafficking. 9• “Missing” guns. Gun dealers frequently claim that guns that wereillegally sold “off the books” were lost or stolen to explain a lack oflegally mandated records or Brady background checks. Large numbersof missing guns can demonstrate irresponsible business practices andprovide evidence that a dealer and its suppliers have created a publicnuisance. 106 See, e.g., Kitchen v. K-Mart, 697 So. 2d 1200 (Fla. 1997) (K-Mart liable for selling a rifle to anintoxicated buyer); Angell v. F. Avanzini Lumber Co., 363 So.2d 571 (Fla. Dist. Ct. App. 1978) (dealercould have reasonably foreseen that injury could have resulted from sale due to purchaser’s erraticbehavior); Diggles v. Horwitz, 765 S.W.2d 839 (Tex. Ct. App. 1989) (finding triable issue of fact as towhether selling gun and giving ammunition to person with mental problems was negligent).7 See, e.g., Lemongello v. Will Co., Inc., 2003 WL 21488208 (W.Va. Cir. Ct. 2003) (pawnshop settledlawsuit for $1 million in case brought by police officers injured by a gun sold to a straw buyer); Hoosierv. Lander, 17 Cal. Rptr. 2d 518 (Cal. Ct. App. 1993) (“strawman” sale constitutes a breach of the gunseller's duty of care and can form the basis for a negligence action against the dealer).8Dep’t of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Commerce in Firearms in the UnitedStates 22 (Feb. 2000).9 See, e.g., Lemongello, 2003 WL 21488208 (pawnshop settled lawsuit for $1 million in case involving 12handguns sold to individual buyer); Jefferson v. Rossi, No. 02218 (Pa. Ct. Com. Pleas, Aug. 2, 2002)(gun dealer engaged in repeat sales of handguns to trafficker; settlement for $850,000).10See Johnson v. Bull’s Eye Shooter Supply, 2003 WL 21639244 (Wash. Super. Ct. June 27, 2003), infra.4

• Stolen guns. Many thefts from gun dealers could be prevented if storesimplemented a few simple, feasible security measures, many of whichhave been recommended by ATF for years. Guns are often stolen fromgun stores as a result of the dealer’s negligent security system. 11The successful lawsuit filed on behalf of Washington, D.C. sniper victimsillustrates one successful gun distribution case, involving a high-risk dealer withlarge numbers of crime guns, multiple sales, and missing firearms. Following the fall2002 sniper attacks in the Washington, D.C. area, victims of the shootings filed alawsuit against the gun’s manufacturer and dealer, alleging negligence and creationof a public nuisance that caused the snipers to obtain their Bushmaster gun. Thefederal Bureau of Alcohol, Tobacco, Firearms and Explosives had traced the snipers’Bushmaster XM-15 assault rifle (like the one pictured here) to dealer Bull’s EyeShooter Supply in Tacoma,Washington. The sniperswere able to obtain theirrifle even though federallaw barred them from possessing a gun. 12When law enforcement contacted Bull’s Eye to find out how the rifle got intothe snipers’ hands, the store claimed not to know that the prominently displayedthree foot long assault rifle was even missing. Lee Malvo, the 17-year-old sniper, toldpolice that he simply walked into the store and walked out with the gun, apparentlywith no one noticing. ATF audits showed that the “disappearance” of the rifle fromBull’s Eye was not an isolated instance. Indeed, Bull’s Eye had repeatedly failed to11Id.12 18 U.S.C. § 922(g) (John Muhammad was barred from buying a gun because of a domestic violencerestraining order and Lee Malvo was barred because he was under 18 years old).5

secure or track its inventory, with 238 firearms missing from its shop in three yearswithout any record of sale. Bull’s Eye ranked in the top 1% nationwide in numbers ofcrime guns traced to the shop, with more than fifty traces including murders,kidnappings, and assaults. 13Federal ATF audits and Bull’s Eye’s gun records demonstrating its recklesspractices were obtainable by gun manufacturer Bushmaster, such that Bushmasterhad constructive notice that a dealer it picked as a top nationwide seller of its assaultweapons was one of the most irresponsible in the country. 14Bushmasternonetheless supplied Bull’s Eye without requiring even a minimum code of conductto ensure that its products were being sold responsibly.Armed with these facts, the plaintiffs’ suit alleged that Bull’s Eye negligentlyran its store with irresponsible business practices that allowed the snipers to easilyobtain their weapon. It is worth noting that there is reason to be skeptical about gundealers’ claims that guns from their inventory that were traced to crime were“missing” or “stolen.” As any profit-seeking business would seek to preventrepeated thefts of its products, it is possible that a gun dealer who has a continualstream of “missing” guns actually illegally sold those guns “off the books,” without arecord or background check. Regardless of how the snipers obtained the gun fromBull’s Eye, reasonable security, inventory control, and other business practices wouldprevent a prohibited purchaser from obtaining a gun, via theft or other means. As toBushmaster, the suit alleged that it negligently entrusted and distributed firearms to13 See Mike Carter et al., Errant Tacoma, Wash., Gun Dealer, Wary Agents Paved Way for SniperTragedy, SEATTLE TIMES, Apr. 29, 2003.14 For example, Bushmaster could have required that Bull’s Eye provide this information to Bushmasteras a condition of Bushmaster’s sale of firearms to Bull’s Eye.6

one of the worst dealers in the country, and knew or should have known thatentrusting these to Bull’s Eye would foreseeably lead to injuries and death. 15The sniper victims’ public nuisance claim was based on Bull’s Eye’s andBushmaster’s business practices that led to guns frequently “disappearing” fromBull’s Eye and ending up in the hands of criminals, including the snipers’ Bushmasterrifle. To prove a public nuisance, a plaintiff must show that the defendant created acondition that is an “unreasonable interference with a right common to the generalpublic,” and that the plaintiff suffered specific harm because of the nuisance. 16Thismay be shown with proof that a defendant’s conduct “generates injury orinconvenience to others that is both sufficiently grave and sufficiently foreseeablethat it renders it unreasonable to proceed at least without compensation to thosethat are harmed.” 17Because a focus of public nuisance claims is on harm to thepublic, evidence of other similar acts may be admitted to prove the extent of thenuisance. Thus, it was relevant to the public nuisance claim that Bull’s Eye “lost”scores of other weapons, had dozens of guns traced to crime, and sold hundreds ofguns in suspect “multiple sales” (sales of multiple handguns to individual buyers).In June 2003, the trial court denied motions to dismiss filed by Bull’s Eye andBushmaster. As to Bushmaster, the court held that based on the facts alleged,“Bushmaster Firearms, Inc., knew or should have known that Bull’s Eye ShooterSupply was operating its store in a reckless or incompetent manner, creating an15Note that Plaintiffs did not claim that Bushmaster was liable simply for manufacturing the gun – theclaim was based on Bushmaster’s negligent conduct in its distribution of firearms.16 Restatement (Second) of Torts §§ 821B, 821C.17City of Gary v. Smith & Wesson Corp., 801 N.E.2d 1222, 1231 (Ind. 2003) (allowing lawsuit againstgun manufacturers and dealers for distribution practices that funnel guns to criminals and create apublic nuisance).7

unreasonable risk of harm.” 18As to Bull’s Eye, the court ruled that gun dealers “owea common law duty to third parties injured by weapons made available to an unfitperson by a firearms dealer.” 19Additionally, the court held:The facts in the present case indicate that a high degree of risk of harmto plaintiffs was created by Bull’s Eye Shooter Supply’s allegedlyreckless or incompetent conduct in distributing firearms. …Furthermore, intervening criminal acts, such as the sniper shootings inthe case at bar, may be found to be foreseeable, and if so found,actionable negligence may be predicated thereon. 20Bushmaster filed an interlocutory appeal to the Washington State Court of Appeals,which was likewise denied. 21Shortly thereafter, Bull’s Eye and Bushmaster agreedto settle the case for $2.5 million.Another successful case involved the shooting of two New Jersey policeofficers with a gun trafficked from a West Virginia pawnshop that engaged in strawsales. Lemongello v. Will Co., Inc., 2003 WL 21488208 (W.Va. Cir. Ct. 2003). In thatcase, a gun trafficker, James Gray, traveled to a West Virginia pawnshop, WillJewelry and Loan, to purchase guns to be trafficked. Gray and a female companion,Tammi Lea Songer, visited the shop, with Songer acting as a “straw purchaser” andbuying a gun for Gray. Gray and Songer then returned to the shop seventeen dayslater and purchased twelve more guns, which Songer bought and paid for withthousands of dollars in cash. Gray picked out guns for Songer in full view of theshop’s personnel – a clear sign that the purchase was an illegal straw purchase – and18 Johnson v. Bull’s Eye Shooter Supply, 2003 WL 21639244, at *5 (Wash. Super. Ct. June 27, 2003).19 Id. at *2.20Id. at *4.21 Johnson v. Bull’s Eye Shooter Supply, No. 30641-7-II (Wash Ct. App. Oct. 2, 2003) (commissionerruling).8

one of the guns was trafficked to New Jersey and used in the shooting of the twoofficers.The legal theory behind the suit was that the pawnshop acted negligently infailing to detect and prevent suspect sales, including straw purchases and multiplesales of handguns to individual buyers. The case alleged that gun maker SturmRuger acted negligently in not monitoring, training or preventing its distributors anddealers from engaging in straw purchases and multiple sales. These sales practicesalso created a public nuisance that endangered the public and caused the arming ofa felon prohibited from possessing guns, and the shooting of Officers McGuire andLemongello. The pawnshop and gun maker moved to dismiss, claiming that theyowed no legal duty to support a negligence claim and did not create a publicnuisance. The court denied the motion:Given the inherent nature of firearms and that Defendants have anability to guard against negligent distribution of firearms, this Courtfinds it is not unreasonable to place this duty on the manufacturerand/or seller of a firearm. Imposing this duty simply requires theDefendants to act reasonably given the nature of their business, and isthe same duty that is required daily of other businesses.Lemongello, 2003 WL 21488208 at *2. Following the court’s ruling, the plaintiffsagreed on a $1 million settlement. 2222 Jonathan Casiano, Former Orange officers get $1M from W. Va. gun seller, Pawn shop sold weaponused in shooting that forced cops to retire, THE (NEWARK, NJ) STAR LEDGER, June 24, 2004. After thesettlement against the dealer, the court entered summary judgment for Sturm Ruger because the gunhad changed hands a number of times – over a number of years – after Ruger sold the gun to adistributor and before the dealer sold the gun to the straw purchaser. However, the facts thatsupported summary judgment for Ruger do not exist in every case, and may not be deemeddispositive by every judge.9

The Protection of Lawful Commerce in Arms ActFollowing settlement of the D.C. sniper case, Lemongello, and another similarcase for a total of $4.4 million, the gun lobby ratcheted up their efforts to shield thegun industry from liability for their negligent or reckless conduct. In 2005, Congresspassed and President Bush signed into law the so-called Protection of LawfulCommerce in Arms Act (PLCAA). 15 U.S.C. §§ 7901-03. The PLCAA bars the filing ofnew cases and requires the immediate dismissal of pending cases against gundealers or manufacturers unless certain exceptions apply.The PLCAA bars cases against gun manufacturers and sellers for harm“resulting from the criminal or unlawful misuse of a [firearm].” 15 U.S.C. § 7903(5)(A).It contains several limitations, however, that allow cases to proceed, the mostimportant of which are:1) An action against a gun dealer (but not a manufacturer) for negligententrustment or negligence per se, 23 and2) An action against a gun manufacturer or dealer who “knowinglyviolated a State or Federal statute applicable to the sale or marketing ofthe product, and the violation was a proximate cause of the harm forwhich relief is sought….” 24The PLCAA also states that its purpose is to block lawsuits concerning “harm solelycaused by the criminal or unlawful misuse of firearm[s],” 15 U.S.C. § 7901(b)(1)(emphasis added), allowing a plaintiff to argue that the PLCAA should not bar caseswhere the gun manufacturer or dealer is an independent cause of harm.23 15 U.S.C. § 7903(5)(A)(ii).2415 U.S.C. § 7903(5)(A)(iii). The other exceptions generally relate to civil causes of action based ontransfers by gun dealers to criminals where the dealer knows that the criminal will use the gun in acrime, breach of contract or warrant claims, and certain product liability claims. Id. § 7903(5)(A).10

Courts interpreting the PLCAA have reached differing conclusions about howthe PLCAA affects pending lawsuits against the gun industry. In several cases,courts have held that the PLCAA’s exceptions apply and thus have rejected attemptsby gun industry defendants to dismiss cases pursuant to the PLCAA. The PLCAA’sretroactive dismissal of pending cases also raises serious constitutional questions,leading one trial court to conclude that the law is unconstitutional.One case examining the impact of the PLCAA on pending litigation was filedby the City of Gary, Indiana against handgun manufacturers and sellers for publicnuisance and negligent distribution. Before enactment of the PLCAA, the IndianaSupreme Court had unanimously held:[T]he City alleges that all defendants intentionally and willingly supplythe demand for illegal purchase of handguns…. Taken as true, theseallegations are sufficient to allege an unreasonable chain of distributionof handguns sufficient to give rise to a public nuisance generated by alldefendants.City of Gary v. Smith & Wesson Corp., 801 N.E.2d 1222, 1241 (Ind. 2003).On a subsequent motion to dismiss filed by the gun industry defendants basedon the PLCAA, an Indiana trial court ruled that the PLCAA is unconstitutional in partbecause it purports to “direct[] the outcome of this pending case.” City of Gary vSmith & Wesson Corp., No. 45D05-0005-CT-00243 (Lake Super. Ct. Oct. 23, 2006). Onappeal, the Indiana Court of Appeals held that the case could proceed because thePLCAA did not apply, and so it did not reach the constitutional question. Smith &Wesson Corp. v. City of Gary, 875 N.E.2d 422 (Ind. Ct. App. 2007), petition for transferfiled (Feb. 7, 2008). The Court of Appeals held that because public nuisance inIndiana is a statutory claim, and the public nuisance statute is “applicable to the sale11

or marketing of firearms” in a manner that creates a nuisance, the PLCAA’sexception for conduct that violates a statute applied and the case was not barred bythe PLCAA. Id. at 430.Likewise, in two cases filed in Philadelphia on behalf of individual victims ofgun violence, the trial court rejected motions by gun industry defendants to have thecases dismissed pursuant to the PLCAA. One case, Oliver v. Lou's Loans, No. 1836(Ct. Common Pleas Phila. Cty., July 20, 2005), involved the shooting death of AnthonyOliver, Jr., a 14 year-old boy who was unintentionally shot and killed by a friend witha .25 caliber Phoenix Arms semiautomatic handgun. His friend mistakenly thoughtthe safety was on and pulled the trigger, shooting Anthony in the stomach. The suitalleged that Lou's Loan of Upper Darby, Pennsylvania, the top supplier of crime gunsin Pennsylvania, negligently sold guns to a gun trafficker, one of which made its wayinto the hands of the shooter. Phoenix Arms, the maker of the "Saturday NightSpecial" handgun used to kill Oliver, was charged with negligently enabling a guntrafficker to obtain the gun. Phoenix Arms continued to supply Lou's Loan even afterrepeated public disclosures of Lou's record of supplying crime guns. The suit alsoalleged that the defendants helped to create a public nuisance in Philadelphiathrough their reckless sales practices. 25The other case, Arnold v. American Security, No. 3118 (Ct. Common PleasPhila. Cty., July 28, 2005), concerned the shooting death of 10-year-old FaheemThomas-Childs, who was shot and killed as he walked through the gates of hiselementary school in Philadelphia. The suit alleged that gun dealer American Gun25 More information on this case is at the Brady Center to Prevent Gun Violence website docket athttp://www.gunlawsuits.org/docket/currentdocket.pdf#page=16.12

and Lock negligently sold the weapon in a “straw sale” to gang members. Acriminal, who was not permitted to buy guns, accompanied the straw purchaser tothe store, picked out the gun, and supplied the money to the straw purchaser whocompleted the transaction. The store's clerk even charged a "handling fee" for thestraw purchase, which the criminal paid. American Gun had sold guns to severalother gun traffickers over the years. The suit charged that American Gun negligentlysold the handgun to a straw purchaser, and that the dealer created a public nuisancein Philadelphia through its reckless sales practices. The lawsuit also included claimsagainst Sturm Ruger, the manufacturer of the gun who continued to supply AmericanGun without any reasonable conditions, even after the store had supplied othertraffickers. Sturm Ruger did not require its dealers to follow industry guidelines forpreventing straw sales. 26After a consolidated hearing on a motion to dismiss by the gun industrydefendants in Oliver and Arnold, the trial court ruled that both cases could proceed. 27The court held that the plaintiffs were entitled to factual discovery to determine theapplicability of any exceptions to the PLCAA. Following the denial of the gunindustry defendants’ motions to dismiss, the defendants reached confidentialsettlements with the plaintiffs in each case.Other courts have given the PLCAA an overly broad reading and required thedismissal of pending cases against gun industry defendants. These cases, however,are all currently on appeal or may soon be appealed. In one such case, District of26More information on this case is at the Brady Center to Prevent Gun Violence website docket athttp://www.gunlawsuits.org/docket/currentdocket.pdf#page=15.27Oliver (Ct. Common Pleas June 22, 2006); Arnold (Ct. Common Pleas June 22, 2006).13

Columbia v. Beretta, 940 A.2d 163 (D.C. 2008), the court ruled that claims filed underthe District’s unique strict liability act for assault weapon manufacturers had to bedismissed pursuant to the PLCAA. The court held that a strict liability statute couldnot be “violated” for purposes of the PLCAA’s statutory violation provision becausethe District’s statute imposed no “duty on firearms manufacturers or sellers tooperate in any particular manner or according to any standards of care orreasonableness.” District of Columbia, at 170. The court, however, distinguishedcases which “claim that gun manufacturers engaged in unreasonable distributionpractices.” Id. Because most cases against gun manufacturers or dealers concernnegligent distribution or the creation of a public nuisance, rather than statutory strictliability claims, the District ruling is not likely to be relevant in other gun litigation. 28Bringing a Case That Will Not Be Blocked By the PLCAANotwithstanding the limitations of the Act, gun companies can be expected toattempt to use the PLCAA to win dismissals of virtually any gun lawsuit. Therefore,it is important to prepare for that likelihood. In several cases filed since enactment ofthe PLCAA, Brady Center attorneys have worked with local trial counsel to craftcomplaints so that they highlight the facts and claims necessary to survive motionsto dismiss based on the PLCAA.One case, Kim v. Coxe, No. 1-JU-08-761 (Alaska Super. Ct., July 31, 2008),stems from the death on August 4, 2006 of Simone Young Kim, a 26-year-old painterworking in Juneau, Alaska. He was shot and killed by Jason Coday, a felon,methamphetamine user, and fugitive from justice, who was prohibited by federal law28Other cases dismissed by courts pursuant to the PLCAA are Ileto v. Glock, Inc., 421 F.Supp.2d 1274(C.D. Cal. 2006) (on appeal) and City of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2nd Cir. 2008)(pending possible appeal).14

from purchasing or possessing a firearm. Nonetheless, on August 2, 2006, he wasable to walk into Rayco Sales, a gun shop in Juneau, Alaska owned by Ray Coxe, andwalk out with a Ruger .22 rifle without submitting himself to a background check.According to Coxe’s statements, Coxe left Coday alone on the sales floor, surroundedby unlocked firearms. Coday then simply left the store with the firearm of hischoosing. The plaintiff alleges that Rayco Sales is liable for Kim’s death fornegligently and potentially illegally providing the rifle to Coday. In light of thenegligent entrustment by the gun dealer to the shooter, and the potentially unlawfulsale of a firearm without a background check, the case should not be subject todismissal under the PLCAA. 29Similarly, the case of Tuft v. Rocky Mountain Enterprises, Inc., No. 080902325(Utah Judicial Dist. Ct., Feb. 8, 2008), concerns negligent entrustment and creation ofa public nuisance by a gun dealer. On February 12, 2007, five people were killed andfour were wounded by a gun-wielding 18-year-old, Sulejman Talovic, at the popularTrolley Square shopping mall in Salt Lake City, Utah. Among his victims were 15-year-old Kirsten Hinckley, who was killed, and her mother, Carolyn Tuft, whosurvived. Talovic was armed with a Mossberg 12-gauge pump action pistol gripshotgun (like the one picturedhere), which he used to shootKirsten, Carolyn, and all but one ofhis victims. After shooting hisvictims, he fought a gun battle with police in the mall’s hallways and was killed by29 More information on this case is at the Brady Center to Prevent Gun Violence website docket athttp://www.gunlawsuits.org/docket/currentdocket.pdf#page=4.15

police. The lawsuit alleges that because Talovic was 18, the gun dealer violatedfederal law that prohibits the sale of pistol grip shotguns to anyone under 21. Thenegligent entrustment and illegal sale of a firearm to Talovic should exempt this casefrom the PLCAA. 30ConclusionAlthough the gun industry hoped that enactment of the PLCAA would end itsliability for supplying criminals with firearms, the courts have shown a willingness toallow cases to proceed under the PLCAA. Specific pleading of the facts that bring acase within limitations to the PLCAA should allow many cases to proceed to trialwithout being hindered by the PLCAA. As these cases illustrate, the gun industryshould not and cannot evade all liability for its conduct in arming criminals withdangerous firearms.30 More information on this case is at the Brady Center to Prevent Gun Violence website docket athttp://www.gunlawsuits.org/docket/currentdocket.pdf#page=6.16